Citation Nr: 1031284 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 97-09 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1970 and from February 15, 1991 to April 11, 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied the benefit sought. The case was last before the Board in January 2010, at which time the Board remanded the appeal to the RO for additional development. It has been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The Veteran's claimed stressors are credible and relate to his fear of hostile military activity involving events resulting in actual or threatened death or serious injury and consistent with the places, types, and circumstances of his service in the Persian Gulf War. 2. There is objective medical evidence that the Veteran's claimed stressors were adequate to support a diagnosis of PTSD, and that the PTSD symptoms were related to the claimed stressors and fear of hostile military activity. CONCLUSIONS OF LAW Resolving all doubt in the appellant's favor, the criteria for establishing service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 1154, 5100, 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Matters The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Though notification to the appellant may not have met all of the requirements of the VCAA and related case law, the matter decided below may be addressed at this time, without further remand, because no errors in notice are prejudicial, and the appellant has been provided all information needed for a reasonable person to prove these claims. In any event, the Federal Circuit recently vacated the Court's previous decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concluding that generic notice in response to a claim for an increased rating is all that is required. See Vazquez-Flores v. Shinseki, No. 08-7150 (Fed. Cir. Sep. 4, 2009). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its January 2010. The RO was instructed to 1) ask the Veteran to identify all health care providers who have treated him for his psychiatric disorder since 2007 and obtain records from the identified providers; and 2) provide the Veteran with a VA examination. The Board finds that the RO has complied with these instructions by attempting to obtain treatment records from the Veteran's treating physicians. The Board further finds that the February 2010 VA examination report substantially complies with the Board's January 2010 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Given the completely favorable disposition of the issue decided below in granting the claim on appeal, any possible deficiencies in the duty to notify and to assist with respect to the current appellate review of the claim constitutes harmless error and will not prejudice the appellant. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Board will thus proceed with the adjudication of the appeal. II. Service Connection for PTSD Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107 (West 2002). Establishing service connection for PTSD requires that there be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2009); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125(a) (2009). In adjudicating a claim for service connection for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); 38 C.F.R. §§ 3.303(a), 3.304. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the Veteran engaged in "combat with the enemy." If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(d) (2009); see also 38 U.S.C.A. § 1154(b) (West 2002); VAOPGCPREC 12-99. VA General Counsel has held that "[t]he ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a Veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." The determination whether evidence establishes that a Veteran engaged in combat with the enemy is resolved on a case-by-case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOGCPREC 12-99; 65 Fed. Reg. 6,256-58 (Feb. 8, 2000). During the pendency of this claim, effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat Veterans. See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010). Previously, VA was required to undertake extensive development to determine whether a non-combat Veteran actually experienced the claimed in-service stressor and lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Instead, credible supporting evidence of a corroborated in-service stressor was required. Credible supporting evidence was not limited to service department records, but could be from any source. See YR v. West, 11 Vet. App. 393, 397 (1998); see also Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Further, credible supporting evidence of the actual occurrence of an in-service stressor could not consist solely of after-the-fact medical nexus evidence. See Moreau, 9 Vet. App. at 396. The amended version of 38 C.F.R. § 3.304(f)(3) eliminated the need for stressor corroboration in circumstances in which the Veteran's claimed in-service stressor is related to "fear of hostile military or terrorist activity." Specifically, the amended version of 38 C.F.R. § 3.304(f)(3) states: If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 38 C.F.R. § 3.304(f)(3) (codified in 75 Fed. Reg. 39,843- 39,852). The VA General Counsel has held that where a law or regulation changes during the pendency of a claim, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the appellant had prior to enactment of the new rule. See VAOPGCPREC 7-2003 (Nov. 19, 2003). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C.A. § 5110(g), can be no earlier than the effective date of that change. VA can apply only the earlier version of the regulation for the period prior to the effective date of the change. The appellant in this case receives consideration under the amended version of 38 C.F.R. § 3.304(f) because the claim was appealed to the Board prior to July 13, 2010, but was not decided by the Board as of July 13, 2010. Factual Background and Analysis The Veteran claims entitlement to service connection for an acquired psychiatric disorder to include PTSD, in part based on stressors experienced during his second period of active service from February 15, 1991 to April 11, 1991. Review of the report of the most recent VA examination, in February 2010, shows that the Veteran associated his claimed psychiatric disorder to Persian Gulf War related stressors involving fear of being bombarded by Iraqi Scuds while serving on the USS GUADALCANAL in 1991. He reported that he was constantly worried about an explosion if a rocket hit, given the millions of gallons of fuel onboard for the helicopters. Service treatment records, personnel records and examination reports associated with the Veteran's first period of active service from October 1966 to October 1970 contain no medical evidence indicating any psychiatric condition or traumatic physical injury referable to the claimed psychiatric disorder; or any evidence that the Veteran was involved in combat during that period of service. Service treatment records and examination reports during the second period of active service from February 15, 1991 to April 11, 1991 contain no medical evidence indicating any psychiatric condition or traumatic physical injury referable to the claimed psychiatric disorder. Service personnel records from the second period of active service contain no evidence that the Veteran was engaged in "combat with the enemy." These records do not show that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. Service personnel records from the second period of active service, however, do contain evidence that the Veteran was stationed onboard the USS GUADALCANAL in 1991 with duties as Boatswain's Mate during his period of active duty service from February 15, 1991 to April 11, 1991. A service personnel document dated in February 1991 shows that the Veteran received active duty mobilization orders for Operation Desert Storm; including to report on February 15, 1991 for initial processing to active duty, and after initial processing, he was to report on February 18, 1991 to the commanding officer, USS GUADALCANAL. A November 2005 letter from the Department of the Navy indicates that the Veteran was on board the USS GUADALCANAL from February 15, 1991 to April 11, 1991. Service treatment records reflect that he was serving on the USS GUADALCANAL in March 1991, as reflected by service treatment records dated on March 11, 1991. On record is an U.S. Department of Defense (DOD) document dated as printed in December 2008 titled CURR, which stands for U.S. Armed Services Center for Unit Records Research (now called the U.S. Army and Joint Services Records Research Center (JSRRC)). That document contains the 1991 history submitted by the USS GUADALCANAL, showing that the ship's mission at that time was to support and land troops and their helicopter-borne equipment and supplies by means of embarked helicopters in an amphibious assault. The DOD document shows that the USS GUADALCANAL received orders on March 9, 1991 to steam to Iskenderun, Turkey in support of actions as part of Operation Provide Comfort, to support Kurds in northern Iraq. The ship left then and arrived in the Bay of Iskenderun on March 14, 1991 and began off loading troops by helicopter and landing craft on March 16, 1991. The marines deployed from the ship by helicopter going into northern Iraq, 400 miles inland. A ship history provided by the Department of the Navy with its November 2005 letter shows that the USS GUADALCANAL made subsequent related trips to Iskenderun in April, May, June, and July 1991. After the Veteran's second period of service ending April 11, 1991, an August 1994 private psychiatric evaluation report shows that the Veteran reported being very upset and at times depressed, and he could not concentrate. The examiner commented that the Veteran's emotional condition began since he returned from the Persian Gulf in 1991, noting that the Veteran started teaching again in August 1991 and had problems with the superintendent who asked him to change his school district. He also had problems with other school officials. He felt that they were harassing him, and this provoked him to become uncontrolled from his nerves. Finally, on encountering a student who came to consult on a task, he grabbed the student by the neck and squeezed. He also later shot his girlfriend, leaving her paralyzed and wheel chair bound. After examination the examiner diagnosed anxiety disorder not otherwise specified. The report of an August 1995 VA examination for PTSD shows that the Veteran reported that after service he had become aggressive toward his students he taught, and had problems toward the director of the school. He reported that he had problems with his girlfriend during an extramarital relationship and shot her three times. He was sentenced to jail and was currently out on probation. He was also married and living with his wife, but had been living separated before. He reported that he served on the USS GUADALCANAL for about two months during the Persian Gulf Era as a cargo handler. After examination the report contains a diagnosis of anxiety disorder not otherwise specified. The examiner commented that there was no evidence in history or in medical exploration for a diagnosis of PTSD. A December 1995 VA clinical record of examination contains a diagnosis of PTSD. The Veteran was hospitalized by VA for about one month between June and July 1996. The treatment report contains a diagnosis of schizo-affective disorder, with acute exacerbation of symptoms. A September 1996 VA discharge report includes an impression of schizoaffective disorder; rule out PTSD. The report of a December 1996 VA examination for mental disorders shows that the Veteran was hospitalized as discussed above, and also from August to September 1996, also with a diagnosis of schizo-affective disorder, with acute exacerbation of symptoms. At the December 1996 examination, after evaluation the report contains a diagnosis of schizoaffective disorder. A May 2001VA progress note of psychiatry consultation contains an assessment that the Veteran "carries a diagnosis of schizophrenia. His mental status is not congruent with it. This could be PTSD complicated by alcohol." The note contains an impression on Axis I of "Schizophrenia by history (brief psychotic disorder?), PTSD; alcohol abuse in remission. The report of a February 2010 VA examination shows that the examiner reviewed the Veteran's clinical history of his psychiatric condition. The report shows that the examiner cited examples and noted that the Veteran had a history of violence and assaultiveness; and had been hospitalized for his psychiatric condition two times in 1996. The Veteran reported a complaint of sleep impairment. The Veteran reported that his psychiatric disorder was due to Persian Gulf War related stressors involving fear of his ship being bombarded by Iraqi scuds while serving on the USS GUADALCANAL in 1991. He reported that he was constantly worried about an explosion if a rocket hit, given the millions of gallons of fuel onboard for the helicopters. The examiner noted that the Veteran had certain PTSD related symptoms including persistent re-experiencing the events, with intense psychological distress at exposure to internal and external cues; persistent avoidance of stimuli associated with the trauma; and increased arousal. After examination, the report contains a diagnosis of chronic PTSD. The examiner opined that the Veteran met the DSM-IV stressor criterion. The examiner opined that the Veteran's PTSD was most likely caused by or the result of traumatic inservice stressors. He based that opinion on the Veteran's symptoms of re-experiencing of traumatic events, avoidance and increased arousal symptoms, in addition to social and occupational dysfunctioning with onset after discharge in 1991. The examiner noted that the Veteran had been assigned different diagnoses since starting psychiatric treatment in 1996. The examiner noted, however, that he was unable to find the criteria used for arriving at a diagnosis of schizoaffective disorder and disagreed with prior diagnostic formulations. The examiner opined that PTSD had been present since the Veteran's discharge but that this diagnosis had not been considered all along these years. The examiner opined that the criteria for PTSD were met; and that the Veteran's PTSD was most likely caused by inservice stressors. In sum, by that opinion, the examiner from the February 2010 VA examination essentially confirmed that the stressor claimed by the Veteran-involving his fear of hostile military scud attacks on his ship-was adequate to support a diagnosis of PTSD, and that the PTSD symptoms were related to the claimed stressors. The claimed stressor was consistent with the circumstances of the Veteran's service on board the USS GUADALCANAL with a mission off the coast of Turkey providing marines and supplies to northern Iraq. The claimed stressors were credible as the threat of Iraqi scud missile attacks was not unknown during the 1991 conflict with Iraq. It is commonly known that during the time of that conflict, scud attacks reached both Israel and Saudi Arabia. Essentially, the Veteran's claimed stressor was related to his fear of hostile military activity involving potential events resulting in actual or threatened death or serious injury; and was consistent with the places, types, and circumstances of his service in the Persian Gulf War. The VA psychiatrist examiner at the February 2010 examination sufficiently confirmed that the claimed stressor was adequate to support a diagnosis of PTSD, and that the PTSD symptoms were related to the claimed stressors and fear of hostile military activity. There is no clear and convincing evidence to the contrary. Based on the foregoing, the Board finds that the evidence of record is at least in relative equipoise as to whether PTSD, is related to the Veteran's service. Accordingly, resolving all reasonable doubt in the appellant's favor, the Board finds that PTSD was incurred in service, and that service connection for PTSD is warranted. 38 U.S.C.A. §§ 5107, 5121; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.1000. ORDER Service connection for PTSD is granted. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs